Vice President Mike Pence speaks at the February 21 meeting of the National Space Council at the Kennedy Space Center, were regulatory reform was a major theme. (credit: NASA/KSC)

Making space regulations great again

by Jeff FoustMonday, February 26, 2018

Well, that didn’t take long at all.

When Vice President Mike Pence visited the Kennedy Space Center last July, part of a tour of NASA and other space facilities since taking office, he repeated a theme that he had stated elsewhere last year. “I come to assure you, the men and women of NASA, and all those at this gateway to the stars, where the aspirations of the American people have taken flight, that under President Donald Trump America will lead in space once again,” he said.

“We’re not going to solve everything at once, but we’re going to try to make measurable progress on the regulatory environment,” said Pace prior to the meeting.

Whether or not the US had really fallen behind in space is debatable (what metric does one use for leadership?), not to mention when, and to whom, and how. And Pence, in his speech, didn’t offer many details about how that leadership would be restored, other than through the activities of the newly reconstituted National Space Council.

But when Pence returned to KSC last week, for the second public meeting of the Council, he had good news. “And today, after the first year of our administration, the record is clear: under President Donald Trump, America is leading in space once again.”

Evidence of that restored leadership, he said, was demonstrated through the reestablishment of the Council and a new Users Advisory Group (whose members were announced the night before the meeting), the Space Policy Directive One signed in December calling for NASA to return humans to the Moon, and a budget proposal released earlier this month. Not the sort of technical or other milestones you’d associate with leadership in space, although Pence did mention the Falcon Heavy’s inaugural launch earlier this month in his remarks.

Bureaucratic shuffling doesn’t seem to be the key to restoring leadership, and there have been few other major milestones since the administration took office 13 months ago. However, shuffling the bureaucracy associated with space, such as how commercial activities are regulated, can make a major difference in the competitiveness of American companies versus counterparts elsewhere. On that front, the administration and the Council have taken some significant, if initial, steps.

One-stop space commerce shopping

In the weeks leading up to this Council meeting, it was clear that regulatory issues would be a major topic. At the previous meeting in October, Pence instructed the Secretaries of Commerce and Transportation, and the director of the Office of Management and Budget, to assess the regulatory framework for commercial spaceflight and identify potential improvements (see “Moon, milspace, and beyond”, The Space Review, October 9, 2017).

“One of the things we’re going to be doing is hearing about thoughts and progress on regulatory reform proposals,” said Scott Pace, executive secretary of the Council, during an appearance at the FAA’s annual Commercial Space Transportation Conference in Washington February 7. “We’re not going to solve everything at once, but we’re going to try to make measurable progress on the regulatory environment.”

George Nield, the FAA associate administrator for commercial space transportation, had been talking in recent months on regulatory reforms his office proposed in response to Pence’s directive from the earlier Council meeting. “The great thing for us about tackling that assignment is that we are totally on board: no arm-twisting required,” he said at the conference.

“You know, the government’s figured out how to honor driver’s licenses across state lines,” Pence said. “There’s no reason we can’t do the same for rockets.”

The FAA, he said, had submitted a number of ideas, including ways to streamline launch licensing to reduce waiting times. His vision for a “21st century licensing process” also called for flexibility in how licenses were applied, such as being able to use the same license for variants of a certain vehicle family, or launches of the same vehicle from different sites.

Pence, speaking at last week’s Council meeting, used that lack of flexibility in launch licenses as one example of needed reform. “You know, the government’s figured out how to honor driver’s licenses across state lines,” he said. “There’s no reason we can’t do the same for rockets.”

One of the recommendations that the Council approved at the meeting covered launch licensing. It called upon the Department of Transportation to “transform the launch and re-entry licensing regime,” including the use of a single license and development of “a performance-based licensing regime,” something else that the FAA advocated for. That work, the recommendation stated, should be completed by March 1, 2019.

Perhaps more significant, though, were proposals regarding licensing of other commercial space operations. Secretary of Commerce Wilbur Ross came to the meeting with a set of recommendations for streamlining regulations. He noted that in some cases, like commercial remote sensing, regulations have not been updated for 25 years. “Space 25 years ago bears little resemblance to space today,” he said. “We need an adaptive and relatively permissive regulatory system.”

Ross said he would seek to combine the Commercial Remote Sensing Regulatory Affairs (CRSRA) office, which licenses and oversees such systems, with the Office of Space Commerce. That combined office would be moved from NOAA, where they reside today, to within the office of the Secretary of Commerce, creating what he called a “one-stop shop for space commerce.” He also vowed to soon name a director for the Office of Space Commerce, which has lacked a permanent head for an extended time.

That plan was endorsed by the Council in one of its recommendations, which also called for developing a legislative proposal to establish an Under Secretary of Space Commerce. That office would be responsible for “for all commercial space regulatory functions” outside of those handled outside the department, like the FAA’s launch and reentry licensing or the FCC’s spectrum licensing.

That recommendation also opened the door for making the Office of Space Commerce the regulator for “non-traditional” space activities not currently licensed by other agencies. Ross advocated the development of a “mission authorization” framework for all commercial activities in space. Such a concept, which would ensure oversight and treaty compliance for commercial activities not overseen by the FCC, NOAA, or FAA, has been proposed in recent years, including by the Obama Administration late in its second term, although in the past it appeared the FAA’s Office of Commercial Space Transportation would be the most likely agency to handle what was sometimes called “on-orbit authority.”

Two other recommendations approved by the Council at the meeting dealt with other commercial space issues. One called on the National Telecommunication and Information Administration to work with the FCC “to ensure the protection and stewardship of radio frequency spectrum necessary for commercial space activities.” The other directed members of the Council to initiate a review of export control regulations to be completed by the end of the year.

During his visit to KSC, Pence visited several companies, including viewing a Delta IV Heavy rocket being assembled for a launch later this year during a tour led by United Launch Alliance president and CEO Tory Bruno (side to camera). (credit: NASA/KSC)

Evolutionary reforms

Some perceived the recommendations as a significant change in commercial space policy, likening the proposed creation of an Under Secretary of Space Commerce to the establishment of a “commercial space czar” responsible for regulating commercial space activities in general.

However, many of the ideas are not new, nor are they as revolutionary as some perceived. The American Space Commerce Free Enterprise Act, approved by the House Science Committee last June, also sought to combine the CRSRA office with the Office of Space Commerce, and give that combined office oversight of non-traditional space activities.

“We are trying to make meaningful change in the approach that we take to regulating,” said Kopko. “Our commercial space regulations are absolutely no exception here.”

“The American Space Commerce Free Enterprise Act, passed by the Science Committee last June, implements these goals by creating an innovative, transparent and streamlined structure for authorizing and supervising space activity,” Rep. Lamar Smith (R-TX), chairman of the science committee, said in a statement after the Council meeting Wednesday. “With this legislation, we commit to complying with our international obligations, reforming our commercial remote sensing system, and welcoming new space operators.”

There has been no action on that legislation since it cleared the committee in June. The Senate, meanwhile, is working on its own commercial space bill that will deal with some of the same issues.

“We are working on legislation that corresponds in many ways to the legislation the House Science Committee worked on,” said Nick Cummings, a Senate Commerce Committee staff member, at the FAA conference February 8. That bill, currently being drafted, is not a “one-for-one” version of the House bill, he said, but will likely include topics like oversight of non-traditional space activities, commercial remote sensing reform, and launch and reentry regulation modernization.

Cummings said that one issue for the Senate is that, given limited floor time, any commercial space bill would likely have to pass through a streamlined mechanism known as unanimous consent. That puts an emphasis, he said, on building consensus during the drafting the legislation. “We do a lot of work on the front end to try to make sure we have something that really represents the consensus, and sometimes that means that some of the thornier issues, where we just can’t get to consensus, we end up having to drop them.”

The desire to streamline commercial space regulations also fits into a broader deregulatory effort by the Trump Administration that’s been warmly received by industry, but generated concern among some organizations and members of Congress. “We are trying to make meaningful change in the approach that we take to regulating,” said Matt Kopko, counselor for the deputy secretary of transportation, at the FAA conference February 8. “Our commercial space regulations are absolutely no exception here. They are decades old and they are long overdue for an overhaul.”

Regulatory changes could also reduce demands on the budget for the FAA’s commercial space transportation office. That office received nearly $20 million in 2017 and is on track for $21.6 million in 2018, based on House and Senate versions of appropriations bills that have yet to be consolidated into a final omnibus appropriations bill. The FAA, in its latest budget request, sought $21.6 million for the office in 2019.

Nield and others at the FAA have argued that the office needs more money in order to hire staff to keep up with the growing number of launch and spaceport license applications. But a key House member hinted that additional funding may not be forthcoming.

“It’s clear that, as the rate of launches increases, the FAA needs to do a better job of keeping pace,” said Rep. Bill Shuster (R-PA), chairman of the House Transportation Committee, in a speech at the FAA conference February 7. “Doubling the number of launches cannot mean a doubling of budgetary resources. We just don’t have the resources, so we have to do a better job.”

However, the Office of Space Commerce will need more resources as it takes on additional responsibilities. The office had a budget in 2017 of less than $1 million and with only a handful of staff. The 2019 proposal sought to increase its budget by $1 million in order to facilitate a “commercial space marketplace” by serving as the point of entry for companies seeking to sell commercial satellite data to the federal government.

The CRSRA office, with a budget of a little more than $1 million, would get an increase of $600,000 in the 2019 proposal to deal with a growing licensing workload. Those increases, though, may not be sufficient if the office is tasked with additional work, like mission authorization of other commercial space activities.

It’s also unclear what the administration’s plans are for commercial remote sensing reform. The recommendation regarding the Office of Space Commerce included language directing it to “propose legislative changes that would further enable the rapid, efficient, and predictable permitting of commercial remote sensing activities” by July 1. There was little discussion of the topic at the meeting, though, and no mention of ongoing legislative efforts like the provisions in the American Space Commerce Free Enterprise Act.

It did come up, though, during a panel session near the end of the Council meeting on commercial space issues. “Remote sensing in particular has been constrained by outdated regulations that often aren’t faithfully implemented,” said Eric Stallmer, president of the Commercial Spaceflight Federation.

“Let’s get to it: we need to license launches faster,” said Elwell. “But industry has got to improve its safety performance, just like the airlines.”

“While there has been great progress, the process still hinders the speed of US innovation,” said Kevin O’Connell of Innovative Analytics and Training and a former chairman of the Advisory Committee on Commercial Remote Sensing, discussing commercial remote sensing licensing. “Slowing down or delaying commercial innovation is neither consistent with US policy nor likely to be a successful strategy.”

Before the meeting, though, some even in government cautioned about going too far in regulatory reform. “Let’s get to it: we need to license launches faster,” said FAA acting administrator Daniel Elwell at the FAA conference February 7. “But industry has got to improve its safety performance, just like the airlines. I expect more from FAA and government, but I also expect more from industry.”

At the end of the nearly two-hour meeting, Pence didn’t make many assignments beyond what was already in the recommendations, other than directing NASA acting administrator Robert Lightfoot “to develop a strategy to develop the framework” for cooperation with commercial and international partners that would be ready “by our meeting this fall.” It’s not clear from that comment if that meeting will be the next public meeting of the Council.

And he concluded his remarks by returning to a statement he made at the opening of the meeting. “The work will continue, and America is leading in space again thanks to all of you,” he told the Council. Whether the US was ever not leading in recent times is debatable, but the Council’s work, if properly implemented, could help American companies retain leadership in growing global space economy.

Jeff Foust (jeff@thespacereview.com) is the editor and publisher of The Space Review, and a senior staff writer with SpaceNews. He also operates the Spacetoday.net web site. Views and opinions expressed in this article are those of the author alone.